Court Must Aggregate All Revocation Imprisonment Terms When Calculating Maximum Supervised Release Term Available Under § 3583(h)

When a district court revokes a defendant's supervised release and imposes a term of imprisonment, 18 U.S.C. § 3583(h) permits the court to impose an additional term of supervised release to be served following imprisonment. Subsection (h) also limits the permissible term of supervised release to that "authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release." (emphasis added).

Which leads to the question presented in Vera: if a defendant has been revoked multiple times, does the italicized language refer only to the length of the term of imprisonment imposed on the instant revocation, or to the aggregate length of all of the revocation imprisonment terms?

The court holds that § 3583(h) requires aggregation. In so holding, it aligned itself with the Fourth, Eighth, and Eleventh Circuits. Those courts relied on the dictionary definition of "any," which means "all." They also pointed to the legislative history of the 1994 amendments to § 3583, in which the bill's sponsor stated that “under [the amendments], a defendant would always be credited for incarceration time against both the cap on re-imprisonment and the maximum authorized period of supervised release.” According to Vera, no other court has held otherwise.

So what did that mean for Vera, who had originally been convicted of a Class C felony? He got 6 months on his first revocation, and 11 months on his second. Under the court's construction of § 3583(h), that meant that the maximum supervised release term he could have received on the second revocation was 19 months (36 months less 17 months). The district court had given him 25 months' supervised release on the second revocation, so Vera got a remand for resentencing.

The Government had argued that a 2003 PROTECT Act change to § 3583(h) eliminated any aggregation requirement. Prior to the change, subsection (h) only allowed an additional term of supervised release if the defendant received less than the maximum revocation imprisonment term. The 2003 amendment eliminated the "less-than" requirement, so now a defendant who gets a maximum revocation imprisonment term can also receive an additional term of supervised release (provided that the original offense occurred prior to the effective date of the PROTECT Act, for obvious ex post facto reasons). Vera rejected the Government's argument, pointing out that "[t]he amendment . . . addressed when the district court could impose supervised release upon revocation, but did not alter the formula for calculating how much supervised release the district court could impose."

So far, so good. But counsel should also be aware of a scary footnote in the opinion noting, but not resolving, a separate question created by the PROTECT Act. Both the pre- and post-PROTECT Act versions of § 3583(e)(3) set forth the maximum imprisonment term a defendant may receive upon revocation of supervised release. "Interpreting the pre-2003 version of subsection (e)(3), courts have held that in multiple revocation cases, the maximum term of imprisonment that may be imposed upon revocation is determined on a cumulative basis and not separately each time supervised release is revoked[,]" an aggregation requirement similar to that in subsection (h). The PROTECT Act changed (e)(3) "to state that the maximum term of imprisonment upon revocation applies 'on any such revocation.'" According to Vera, "[c]ourts reviewing this amended language have concluded that the maximum term of imprisonment that can be imposed upon revocation now applies on a per revocation basis, without regard to any term of imprisonment imposed in previous revocations." (citing an Eighth Circuit case collecting other cases). The court declined to resolve that question here, because it wasn't at issue. But it did observe that the lack of a similar change to subsection (h) bolstered its reading of the statute.